Argued: January 24, 2017
from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:16-cv-00024-JLK)
ARGUED: Kelly Ann Powers, MILES & STOCKBRIDGE P.C.,
Washington, D.C., for Appellant.
Christopher George Michel, KIRKLAND & ELLIS LLP,
Washington, D.C., for Appellee.
BRIEF: Stephen J. Cullen, Leah M. Hauser, Rachel N. Mech,
MILES & STOCKBRIDGE P.C., Washington, D.C., for
E. Murphy, KIRKLAND & ELLIS LLP, Washington, D.C., for
MOTZ, DUNCAN, and HARRIS, Circuit Judges.
Duncan wrote the opinion, in which Judge Motz and Judge
DUNCAN, Circuit Judge
Xochitl Jazmin Velasco Padilla ("Petitioner")
appeals the district court's denial of her petition for
the return of her now five-year-old child J.V.
("Child"), after Respondent-Appellee Joe Richard
Troxell ("Respondent") took Child to the United
States. Petitioner filed her petition under the Hague
Convention on the Civil Aspects of International Child
Abduction ("Hague Convention"), Oct. 25, 1980,
T.I.A.S. No. 11, 670, 19 I.L.M. 1501, as implemented by the
International Child Abduction Remedies Act
("ICARA"), 22 U.S.C. § 9001 et seq.
The district court denied the petition, finding that
Petitioner had established that Child was wrongfully removed
but that Respondent had adequately shown at least one defense
under the Hague Convention --that is, that Petitioner had
consented to Child's removal from Mexico. For the reasons
that follow, we affirm.
gave birth to Child on May 27, 2011 in the state of Oaxaca,
Mexico. Child's biological father is unconfirmed.
However, the parties believe Respondent is the paternal
grandfather. Respondent--a U.S. citizen residing in Mexico at
the time--offered to provide support for Child. In January
2012, when Child was about eight months old, Petitioner and
Respondent agreed that Respondent would serve as Child's
legal father. Accordingly, Respondent registered himself as
Child's father, and his name appears on the birth
certificate. As stipulated by the parties, Respondent is the
legal father and has parental rights under Mexican
first two years of Child's life, although Respondent had
little to no physical contact with Child, he did provide
financial support. On December 17, 2014, Petitioner and
Respondent traveled to Oaxaca to obtain a Mexican passport
for Child. After they obtained Child's passport together,
Respondent took Child to his home in Acapulco until Child
entered the United States.
parties' descriptions of the circumstances under which
Child entered the United States vary dramatically. Although
the district court was to find Petitioner's version of
events not credible, we nevertheless set out both versions
for the sake of comprehensiveness.
to Respondent, Child spent his first two years not with
Petitioner, but primarily in Petitioner's mother's
care. In early 2014, Petitioner's mother called
Respondent and stated that Child wanted to see Respondent.
Respondent and his then-fiancée, now-wife Blanca Leyva
("Ms. Leyva") picked up Petitioner's mother and
Child from the bus station, and they stayed at
Respondent's home in Acapulco for several days. During
the visit, Petitioner's mother said she wanted help
bringing Child to the United States and that Child would
require a passport and visa to enter the country. Respondent
was planning to move to the United States, both to marry Ms.
Leyva and to undergo surgery. He obtained a
"fiancée visa" authorizing Ms. Leyva to
enter the country to get married, and he told
Petitioner's mother that he would also apply for a
passport for Child. After this visit, Respondent began
preparing for the move. When Respondent informed
Petitioner's mother that Child's passport would
require Petitioner's signature, she confessed, "I
don't know where [Petitioner] is." App. 578.
Eventually, a friend helped Petitioner's mother locate
Petitioner in Zaachila, a town six hours north near the city
of Oaxaca. In early December, Respondent and Ms. Leyva
traveled to Rio Grande to pick up Child from Petitioner's
mother, then to Zaachila to pick up Petitioner, and finally
to the passport office in the city of Oaxaca.
December 17, 2014, Petitioner, Respondent, and Child--as well
as Petitioner's half-sister, Maria Luisa Banos Castillo
("Ms. Banos"), and her children--went to the
passport office. Petitioner and Respondent jointly signed for
Child's passport, which they received later that day. The
entire group stayed the night at the house where Petitioner
was living. The next day, December 18, the group celebrated
Ms. Leyva's birthday. On the morning of December 19,
Respondent and Ms. Leyva returned with Child to
Respondent's home in Acapulco, where they resided until
leaving for the United States.
testified that Petitioner never told him that she wanted him
to bring Child into the United States illegally without her.
However, according to Respondent, during the visit to obtain
Child's passport, Petitioner "agreed to sign over
custody" to Respondent, App. 583, because she believed
he would be able to get Child on the "right track,
" App. 584. Ms. Leyva later testified that Respondent
and Petitioner specifically discussed taking Child to the
United States so that Child could "have a better
life." App. 635. Although Ms. Leyva stated "there
was no plan, " the prospect of moving to a U.S. city
"was always on the table" between the parties. App.
634; see also App. 635.
part, Petitioner contended that during Child's first two
years she had only been separated from Child for six weeks.
Petitioner stated that she went to get a passport for Child
because Respondent offered to "get papers for me and my
child, " so that "perhaps I could have a
vacation" in the United States with Child. App. 536. According to Petitioner,
Respondent took Child without her knowledge and consent. She
stated that on the day ...